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Law, emotion and the objectivity debate

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Abstract

This article will argue that emotional thinking and decision-making does not lead to an abandonment of objectivity when we drill down and consider what precisely we mean by both emotion and objectivity in law. In doing this I do not necessarily wish either to accept or to challenge the importance that objectivity occupies in our legal thinking, but merely to reconsider its definition and hope for a more nuanced conversation around its significance, purpose and function. I will argue that if we accept a meaning of emotion that connects it to rationality, and if we accept a meaning of objectivity which connects it to our agency, then emotion and objectivity are not opposites, but rather, two mutually reliant and essential parts of legal thinking and legal decision making.

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... In research from several disciplines, the traditional dichotomy between emotion and rationality has been replaced by an understanding in which emotion and rationality are seen as complementary (Damasio 1994;de Sousa 1987;Etzioni 1988;Illouz and Finkelman 2009) or even continuous (Barbalet 1998;Barrett 2017;Grossi 2019). Emotions are necessary to determine salience (de Sousa 1987;Morton 2010); to evaluate the importance of different alternatives (Damasio 1994); to motivate or evaluate knowledge acquisition (Arango-Muñoz 2014); and to motivate and facilitate a rational focus (Barbalet 2002). ...
... When we narrow our focus to legal decision-making in court, two central perspectives emerge: information processing and empathy (for reviews see Bandes 2009;Feigenson and Park 2006;Henderson 1987). Both perspectives engage with the problem of agency for rational decision-making: (How) can a feeling subject make objective decisions (Grossi 2019)? ...
... The impact of emotion in a legal setting is complex and includes the arbiters' respective moods when coming to court (Semmler and Brewer 2002), their understandings of the evidence (Salerno and Bottoms 2009), and their interpretations of the emotional state of the victims/plaintiffs or defendants, for example, in relation to evaluating credibility (Weisman 2016;Wessel et al. 2006). Although the biasing role of emotion in rational information processes is central to social psychological theory building in this field, there is also emerging research arguing that awareness of and reflection on emotional processes could promote objective decision-making (Gendron and Barrett 2019;Grossi 2019), the implication being that silencing emotions per se disrupts rational reasoning (Maroney and Gross 2014). ...
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